On September 25, 2000, Teamsters Local Union No. 695 filed a
complaint with the Wisconsin Employment Relations Commission
alleging that the Town of Brookfield had committee prohibited
practices in violation of Sec. 111.70(3)(a)3, 5 and 7, Wis. Stats.,
by its manner of assigning shifts and paying overtime under a
collective bargaining agreement implemented pursuant to an interest
arbitration award. The Town denied that it had committed
prohibited practices. Following an unsuccessful attempt at
conciliation, the Commission authorized Stuart D. Levitan, an
examiner on its staff, to conduct a hearing on said complaint with
authority to issue findings of fact, conclusions of law and
appropriate orders. On January 12, 2001, a hearing on the matter
was scheduled for February 2, 2001. On January 29, 2001, the union
filed an Amended Complaint alleging that the town had also
committed prohibited practices in violation of Sec. 111.07(3)(a)1,
Stats. At hearing, following an objection by the town, the union
withdrew the paragraphs in its amended complaint relating

No. 30033-A

Page 2

Dec. No. 30033-A

to the supplemental charges. A transcript of the hearing was made
available to the parties by February 14, 2001. The parties
submitted written arguments and replies, the last of which was
received on April 2, 2001. The undersigned now and hereby issues
the following

FINDINGS OF FACT

1. Teamsters Local Union No. 695, "the union," is a labor
organization with offices at 1314 North Stoughton Road, Madison,
Wisconsin.

2. The Town of Brookfield, "the town," is a municipal employer
with offices at 645 North Janacek Road, Brookfield, Wisconsin. At all
times relevant Richard Schultz was the Town Administrator and Sidney
"Skip" Sharpe was the Fire Chief.

3. In 1997 the union was certified as the exclusive collective
bargaining agent for all regular full-time and regular part-time fire
fighters of the Town of Brookfield Fire Department.

4. In seeking an initial collective bargaining agreement, the
parties reached a tentative agreement which the union ratified but which
the town rejected. Thereafter, following a petition for
mediation/arbitration and an investigation by the staff of the Wisconsin
Employment Relations Commission, the dispute was submitted to interest
arbitrator James L. Stern. On February 11, 2000, Arbitrator Stern
issued his award, which is attached as Appendix A.

5. Among the provisions in the collective bargaining agreement in
effect pursuant to the Stern Award were the following:

. . .

16.04 Selection of Personnel.
Selection of personnel for "in-house
staffing" shall be by bid on a monthly basis. The monthly bid
shall proceed in order of seniority within classification first
then as to any vacant position not selected by bid at the close of
the bidding process shall be filled/offered in order of overall
seniority pursuant to this Agreement. Personnel can only select
(bid) positions the employee is otherwise qualified to hold, i.e.,
all certified firefighters shall be allowed to submit bid requests
for firefighter positions on this schedule, all certified
driver/operators who have been certified as HEO's will be allowed
to submit bid requests for HEO positions on the schedule, all
department officers will be allowed to submit bid requests for
officer positions on

Page 3

Dec. No. 30033-A

the schedule, provided, however, regular officers will have
first priority for schedule requests while acting officers
will have second priority for schedule requests.

Personnel who wish to fill "in-house
staffing" positions will
submit a written request to schedule manager on forms provided
for such purpose by the Fire Department. Such written
requests must be submitted to the Fire Department Schedule
Manager no later than 6:00 p.m. on the 18th of the month.

In the event, there is insufficient staffing
by virtue of this
Section, the Town retains the right to assign employees to
fill the vacancy(s).

16.05 Schedule Manager.
The Fire Chief will designate a
department member as "schedule manager" who will manage the
"in-house staffing" schedule. Management of the schedule
shall be an extra duty. The schedule will be kept in the Day
Book on forms provided by the Fire Department and on a
calendar which will be posted in a public area of the fire
station. In case of a discrepancy between the Day Book and
the schedule calendar, the Day Book shall prevail.

The schedule manager will assign shifts
from the bids
submitted. Where two (2) or more eligible personnel request
the same position on the same shift, the member who is higher
on the seniority list will prevail.

The Fire Department seniority list shall be
maintained and
provided by the Fire Chief. The list shall rank all members
of the fire department according to their hire date and shall
be kept posted next to the schedule calendar.

16.06
Schedule/Schedule Changes. Fire Department member
personnel may only request positions they intend to otherwise
fill themselves on a monthly basis. Member personnel may not
reserve, give away, cash trade, or sell schedule positions to
other department members. However, members are free to trade
posted schedule positions, with the concurrence of the
schedule manager, who shall make an appropriate entry in the
Day Book and thereon the schedule calendar, as long as each
member is qualified to fill the position traded for.

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Dec. No. 30033-A

The Fire Department recognizes that there
will be situations
where a department member will not be able to work a scheduled
period. In such circumstance, the employee will contact the
shift officer as soon as practical, the shift officer will
then proceed to contact the schedule manager who will then
proceed to fill the vacancy for said period or such term as
may otherwise be appropriate with the next senior, qualified
member, in accordance with this Agreement.

16.07 Open Positions. Any
position in the shift not assigned
on or after the 18th of the month will be considered open. An
open position may be filled at any time by a qualified
department member, in accordance with this Agreement.

Any qualified member may request any open position verbally
or
in writing to the schedule manager. In the absence of the
schedule manager, any shift officer may approve a shift
request. Whenever a request to fill an open position is
approved by a shift officer, the shift officer approving the
request will write the name of the member requesting the
position into the appropriate place in the Day Book and the
schedule calendar.

16.08 Open Shift Officer
Positions. In the instance and for
such occurrence where a shift starts, and no qualified
employee member has bid or otherwise has been assigned as the
shift officer, the member who is most senior will be
designated as the shift officer and will assume the
responsibilities and benefits of the shift officer.

16.09 Day
Book. The shift officer will keep an accurate record
of the personnel working "in-house" within the Day Book. The
names of the members actually working, the time the employee
started and ended work, the position(s) they filled and any
other pertinent information will be recorded.

16.10
Workweek. The workweek shall commence at 0800 hours
Sunday and end at 0759 hours the following Sunday.

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Dec. No. 30033-A

16.11 Shift
Requests. Bargaining unit personnel may bid as few
or as many shifts as desired; provided, however, all requests
must be for full shifts. Split shifts will not be allowed.
The bid process closes at 6:00 p.m. on the 18th of the month.
Once closed and the schedule drawn and fully posted, any open
hours may be thereafter filled on a first come first serve
basis. Employee requests to work partial shifts will be, at
this point, accepted and allowed.

All remaining employee(s) not on schedule
will be assigned to
a duty crew (on call crew) Monday through Thursday. The
makeup of which shall be a minimum of four (4) employees who
shall hold themselves as available as per past practice
provided however each employee shall receive two (2) hours pay
(pager pay) at the employees applicable hourly rate of pay per
day served in addition to all hours worked and, when
applicable, pay received under Section 16.15 of this
Agreement.

. . .

16.14 Overtime. All work in excess of scheduled bid
shift
hours and all work in excess of forty (40) hours per week
shall be paid at the rate of time and one-half (1-1/2)
the employee's applicable hourly rate of pay.

16.15 Call Back Pay / Call In Pay. Any employee who
responds to calls outside of their regular schedule will
be paid a minimum of two (2) hours pay.

6. Upon the parties being notified of the substance of the
Stern award, Sharpe informed various union officials that the town
would be meeting to decide how to implement the new collective
bargaining agreement. Thereafter, on or about March 1, 2000, the
Town unilaterally issued a document entitled "Union Contract
Implementation" (UCI), which is attached as Appendix B. Among its
provisions relevant to this proceeding were the following:

3.0 Bidding For Shifts

3-1 The bid closing for March shifts will be extend
(sic) to 8:00 A.M. on February 25, 2000.

3-2 Bids for shifts for future months will close at
6:00 P.M. on the 18th of the previous month
(Section 16.04 ­ Union Contract)

3-3 Members may bid for up to 40 hours each
workweek.

3-3.1 "Bargaining unit personnel may bid
as few or as many shifts as desired.
Section 16.11 of Union contract means up
to 40 hours per workweek.

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Dec. No. 30033-A

3-3.2 The 40 hours includes any scheduled
work including:

3-3.2.1 All in-house hours.

3-3.2.2 Scheduled training, including Monday
night training.

3-3.2.3 Two hours of pager pay (for those
evening when on duty crew)

3-4 Members may bid only for full shifts (Section
16.11 ­ Union Contract)

3-4.1 Members may not bid for a shift if
their total hours for the workweek will
exceed 40 hours during the shift.

3-4.2 Members may not bid for a shift if
any part of that shift would be unpaid
time.

3-4.3 Members shall work the shifts they
are assigned through the bid process.

3-4.3.1 .1 A member may give
away a shift assigned by the
Chief. The member taking the
shift:

3-4.3.1.1 Must have at
least equal
qualifications to
the person giving
it away.

3-4.3.1.2 Must not go
over 40 hours by
taking the shift.

3-4.3.1.3 Have approval
from the Chief,
schedule manager
or shift
commander.

3-5 Members may bid only for shift positions they are
qualified to hold. "Qualified" means firefighters
may bid for firefighter positions, HEOs may bid for
HEO positions and officers may bid for officer
positions (Section 16.04 ­ Union Contract)

3-6 Filling Vacant Positions

3-6.1 The schedule manager will produce a
schedule for the following month based on
the bid process (Section 16.05 ­ Union
Contract)

3-6.2 Members may fill vacant positions on
the schedule as long as they are
qualified for the position they want to
fill (Section 16.07 ­ Union Contact)

3-6.2.1 A firefighter may not fill
an open officer spot on the
schedule because they are not
qualified by virtue of
promotion.

Page 7

Dec. No. 30033-A

7. Those provisions of the Union Contract Implementation
document which prevent Fire Department employees from bidding for
a shift if their total hours for the workweek would exceed 40 hours
during the shift, including sections 3-3 and 3-4, violate section
16.11 of the collective bargaining agreement currently in force
between the parties.

8. Those provisions of the Union Contract Implementation
document, including section 3-3.2.2, and any other practice of the
employer which do not compensate employees at time and one-half for
hours actually worked while on call-back status and/or for training
activities when an employee would not otherwise be on duty violate
section 16.14 of the collective bargaining agreement currently in
force between the parties.

9. There is no evidence that the town sought to encourage or
discourage membership in any labor organization by discrimination
in regard to hiring, tenure or other terms or conditions of
employment by its issuance of the Union Contract Implementation
document.

On the basis of the above and foregoing Findings of Fact, the
undersigned hereby make and issue the following

2. By not paying time and one-half for training activities
undertaken by employees who were not otherwise scheduled to work, and by
not paying time and one-half for hours actually worked while in call-back status, the Town
violated the collective bargaining agreement and
therefore committed a violation of Sec. 111.70(3)(a) 5, Wis. Stats.

3. By paying pager pay at straight time, the Town did not violate
the collective bargaining agreement and therefore did not commit a
violation of Sec. 111.70(3)(a) 5, Wis. Stats.

4. By issuing the Union Contract Implementation document, the
Town did not violate Sec. 111.07(3)(a) 3 or 7, Wis. Stats.

On the basis of the above and foregoing Findings of Fact and
Conclusions of Law, the undersigned makes and issues the following

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Dec. No. 30033-A

ORDER

1. The Town of Brookfield shall immediately cease and desist from
enforcing those terms in the Union Contract Implementation document
which set a 40-hour per workweek maximum as the limit for which
employees of its Fire Department may bid and receive shifts.

2. The Town shall pay employees time and one-half for hours
actually worked while on call-back status and for training activities
undertaken when an employee would not otherwise be on duty.

3. The Town shall make employees whole by paying them the
amount it improperly withheld by the violation noted in Conclusion
of Law 2, retroactive to January 1, 1998, plus twelve percent
(12%) interest as specified in Sec. 804.14(4), Stats

4. The Town shall post in the place where employee notices
are customarily kept the attached Notice, maintaining such notice
for not less than 30 days.

5. The complaint as to violations of Sec. 111.70(3)(a) 3 and 7,
Wis. Stats., are dismissed.

6. I shall retain jurisdiction in this matter to resolve any
disputes that may arise over the application of the remedies contained
in this order, such jurisdiction to lapse on August 1, 20001, unless
prior to that time either party requests in writing that I continue to
retain jurisdiction.

Dated at Madison, Wisconsin this 1st day of June, 2001.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

Stuart Levitan, Examiner

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Dec. No. 30033-A

TOWN OF BROOKFIELD (FIRE
DEPARTMENT)

MEMORANDUM ACCOMPANYING FINDINGS
OF FACT,

CONCLUSIONS OF LAW AND
ORDER

POSITIONS OF THE PARTIES

In support of its complaint, the union asserts and avers as
follows:

The Town's "Union Contract Implementation" (UCI) directly
conflicts with arbitrator Stern's award and the parties' collective
bargaining agreement, and therefore constitutes a violation of
secs. 111.70(3)(a) 5 and 7. In particular, sections 3-3 and 3-4 of
the UIC contradict the clear language of section 16.11 of the
collective bargaining agreement in their restriction upon
bargaining unit members of bidding for no more than 40 hours each
workweek, contrary to the contract's provision that "bargaining
unit personnel may bid as few or as many shifts as desired." By
restricting the number of hours bargaining unit personnel may bid
to 40, the Town has ignored and modified the clear language of the
parties' agreement and thereby committed a prohibited practice
within the meaning of sec. 111.70(3)(a) 5.

The Town has also violated the agreement
by including in the
40-hour maximum hours spent in scheduled training or on pager pay
for those evenings when an employee is on the duty crew; nothing in
the agreement permits the Town to include these hours in the bid-maximum. As there is no
limit on the number of hours an employee
can bid, there can be no requirement that pager pay or training
hours be included in some unilaterally implemented maximum.

The plain and unambiguous language of the
agreement places no
limit on the number of hours an employee may bid to work. To the
extent that the UCI contradicts the clear language of the
collective bargaining agreement, it constitutes a prohibited
practice in violation of Sec. 111.70(3)(a)5, Stats.

Further, the Town is attempted to
unilaterally implement its
final offer at interest arbitration which was rejected by the
arbitrator. Except for the change from 38 hours to 40 hours, the
Town's final offer at interest arbitration is identical to section
3-3.2 of the UCI. It is well established that a party cannot gain
at arbitration what it could not secure in bargaining, and the Town
should not be allowed to obtain through its unilateral
implementation of the UCI what it could not secure in arbitration.

Page 10

Dec. No. 30033-A

The Town was unsuccessful in bargaining and arbitration both in
limiting the number of hours an employee may bid each week and in
counting two hours pager pay and all training time towards such a
limit. To implement these restrictions contrary to the arbitration
award and implementation of the collective bargaining agreement
constitutes a prohibited practice in violation of sec. 111.70(3)(a)
5 and 7, Wis. Stats.

Further, the management rights article does
not grant the Town
the tight to modify the agreement, in that the management rights
clause is limited by the express terms of the agreement. As those
terms of the agreement make clear, the Town has no right to set a
cap on the number of hours an employee may bid, nor to define what
constitutes such hours, nor define how overtime is paid on hours
outside the normal bid shift hours. The Town's failure to abide by
the express terms of the agreement constituted a prohibited
practice.

The Town is also violating sec.
111.70(3)(a)5, Wis. Stats., by
failing to pay overtime on all hours in excess of the scheduled bid
shift hours. The collective bargaining agreement clearly states
that all work "in excess of scheduled bid shift hours" and all work
in excess of forty hours per week are paid at the rate of time and
one-half. Yet the Town has only paid overtime for hours in excess
of forty hours per week and all hours after the end of an
employee's shift, not all hours in excess of the shift. Under the
collective bargaining agreement, any hours which fall outside the
employee's scheduled bid shift hours, including training and call-backs, are hours which are
compensated at time and one-half. The
Town clearly recognized this, and argued against it at the interest
arbitration proceeding specifically on those grounds; Arbitrator
Stern, also understanding the ramifications, ruled against the
Town's position. The Town may not now refuse to abide by the clear
language of the collective bargaining agreement and the arbitration
award simply because it is unhappy with the language.

By its consistent refusal to abide by the
clear language of the
collective bargaining agreement and the arbitration award, the Town
of Brookfield has committed prohibited practices in violation of
Secs. 111.70(3)(a) 5 and 7, Wis. Stats. The examiner should find
such violations, order the Town to cease and desist from further
violations, and order the Town to immediately implement Arbitrator
Stern's award. The Examiner should also order that all affected
bargaining unit members be made whole for the Town's failure and
refusal to pay overtime on all hours worked in excess of scheduled
bid shift hours.

Page 11

Dec. No. 30033-A

In support of its position that it did not commit any prohibited
practices, the Town asserts and avers as follows:

Under the provisions of the collective bargaining agreement, it is
clear that a scheduled bid shift is either a day shift or a night shift
for which the employee has submitted a bid to work on a monthly basis.
If the scheduling manager assigns the employee to work the shift for
which the bid was submitted, taking into account the requirement to
assign employees based on a seniority basis, the resulting assignment is
a "scheduled bid shift." The employer's obligation to pay overtime, as
required by section 16.14 of the agreement, is also clear, and covers
all work "in excess of" scheduled bid shift hours, and all work in
excess of 40 hours per week.

The phrase "in excess of" scheduled bid
shift hours clearly and
unequivocally refers to those hours immediately preceding, or
immediately following, a scheduled bid shift. That is, an employee who
bid on, received and worked a night shift whose tour of duty ended at
8:00 a.m. and who responded to a call at 7:30 a.m. and continued to work
until 10:00 a.m. would receive time and one-half for the two hours in
excess of the scheduled bid shift hours, namely from 8:00 to 10:00.
Applying the plain and unambiguous language of the contract, there can
be no other conclusion.

Further, the Town has the right to control
overtime hours. While
there is no question but that the contract obligates the employer to
assign bids on a seniority basis, the Town has the right, by virtue of
the contractual management rights clause, to control the amount of
overtime work by employees. Specifically, the contract provides that
the employer's management rights include, but are not limited to, the
right to "establish work rules and schedules of work," and to "direct
the employees, assign work and overtime." These rights are not limited
or otherwise restricted by any other contract provision; while an
employee may submit a request for shifts pursuant to the bidding
process, there is no contract provision which obligates the Town to
accept those bids. Indeed, the only contractual commitment of the Town
with respect to the assignment of requested shifts is that the seniority
basis by followed when two or more employees have requested, or
submitted bids, for the same shift.

Page 12

Dec. No. 30033-A

This interpretation is supported by the
provision which grants the
Fire Chief the authority to designate a "Schedule Manager" to manage the
in-house staffing schedule and "assign shifts from the bids submitted."
The delegation to the Schedule Manager to assign shifts indicates that
the Town has retained the discretion to fill the bid request, subject
only to the commitment to honor the seniority clause of the contract
when that clause is applicable.

The language of the contract clearly and
unequivocally substantiates
the Town's interpretation of the contract. Overtime is required to be
paid for those hours "in excess of" scheduled bid hours, but not "for
those hours other than" scheduled bid shift hours, as was argued by the
Complainant at hearing. Further, the Town's right to assign work and
control overtime is not restricted, and the Town is not obligated to
fill the bid shift request where the request, if approved, would violate
a legitimately enacted work policy established by the Town Board for the
purpose of controlling Department overtime payments.

In response, the union posits further as follows:

The Town's interpretation of the provisions
of the collective
bargaining agreement regarding overtime ignores the clear language
and has no merit. The clear language supports the interpretation
that overtime must be paid for any work that is not part of the
employee's scheduled bid shift, regardless of when the work occurs.
The plain language grants overtime for all work in excess of
scheduled bid shift hours, not simply work which follows the end of
a scheduled bid shift.

Even if the language is found ambiguous,
the Union
interpretation must still prevail because bargaining history
supports its position. As the record of the interest arbitration
shows, the Town argued that the Union proposal would force it to
pay overtime routinely. This bargaining history illustrates that
both parties understood that the language now in the collective
bargaining agreement would entitle employees to overtime for all
work outside of scheduled bid shift hours, including training and
pager pay.

Further, the Town must not be allowed to
implement its final
interest arbitration award under the guise of management rights.
Except for the change from 38 hours to 40 hours, what the Town is
seeking to implement through its UCI is exactly what it sought,
unsuccessfully, in its final offer at interest arbitration. This
attempt at unilateral implementation violates MERA and cannot be
sustained. The terms the Town is attempting to impose were never
agreed to and were not incorporated into the parties' final
agreement.

Page 13

Dec. No. 30033-A

Accordingly, the Union's complaint must be sustained and the
Town ordered to cease and desist from its unlawful practices and
make whole all employees unjustly affected.

In its response, the Town posits further as follows:

The Union's brief indicates that it has "flip-flopped" on a
central issue, and has now taken the position that it is the prior
arbitration award that controls; at hearing, it took the position
that it was the collective bargaining agreement that controlled.
Simply stated, this position has no merit, in that the arbitration
award did not address the issue of whether the Town could, by
exercise of its management rights, limit the amount of overtime
work. In his award, the arbitrator specifically declined to decide
this issue. Contrary to the Union's position, the award did not
resolve the issue of whether the Town could establish working hours
and limits its overtime payments. Moreover, the clear and
unambiguous language of the collective bargaining agreement allows
the Town to establish working and overtime conditions, which it did
through the proper exercise of its management rights.

Further, the Union errs in seeking to have
the examiner rewrite
the contract so as to require the Town to pay overtime for any
hours "other than" scheduled bid shift hours. The collective
bargaining agreement, however, provides only that the Town pay
overtime for any hours "in excess of" scheduled bid shift hours.

The Union's argument is wrought with
inconsistencies and
contradictory interpretations which should be rejected. Scheduled
bid shift hours are full shifts which run from 8:00 a.m. to 6:00
p.m. and 6:00 p.m. to 8:00 a.m.

DISCUSSION

In its complaint, the union alleged that the town committed
five prohibited practices ­ that the town's failure and refusal to
pay proper backpay according to the Stern award constituted a
prohibited practice under Sec. 111.07(3)(a)7, Wis. Stats., and that
the town's use of the Union Contract Implementation plan, its
unilateral change to the workweek 1/, its refusal to pay employees
time and one-half for all work in excess of scheduled bid shift
hours, and its policy of counting training hours toward the maximum
of forty (40) bid shift hours all constituted prohibited practices
under Sec. 111.07(3)(a) 3 and 5, Wis. Stats.

__________

1/ The issue of unilateral change to the
workweek was resolved
by hearing and not further pursued by the union.

__________

Page 14

Dec. No. 30033-A

The complaint as to Sec. 111.07(3)(a)3

Section 111.70(3)(a)3, Stats., makes it a prohibited practice for
a municipal employer to "encourage or discourage a membership in
any labor organization by discrimination in regard to . . . tenure
or other terms or conditions of employment." It has been well-settled for over thirty years
that, to prove a violation of this
section the Complainant must, by a clear and satisfactory
preponderance of the evidence, establish that:

1. Complainant was engaged in protected activities;
and

2. Respondents were aware of
those activities; and

3. Respondents were hostile to
those activities; and

Respondents' conduct was
motivated, in whole or in part, by
hostility toward the protected activities. 2/

Evidence of hostility and illegal motive (factors three and
four above) may be direct (such as with overt statements of
hostility) or, as is more often the case, inferred fromthe
circumstances. Town of Mercer, Dec. No. 14783-A (GRECO, 3/77). If
direct evidence of hostility or illegal motive is found lacking,
then one must look at the total circumstances surrounding the case.
In order to uphold an allegation of a violation, these
circumstances must be such as to give rise to an inference of
pretext which is reasonably based upon established facts that can
logically support such an inference. Cooperative Education Service
Agency #4, Et Al., Dec. No. 13100-E (Yaffe, 12/77), aff'd, Dec. No.
13100-G (WERC, 5/79).

Regarding the fourth element, it is irrelevant that an
employer has legitimate grounds for its action if one of the
motivating factors was hostility toward the employe's protected
concerted activity. LaCrosse County (Hillview Nursing Home), Dec.
No. 14704-B (WERC, 7/78). In setting forth the "in-part" test, the
State Supreme Court noted that an employer may not subject an
employe to adverse consequences when one of the motivating factors
is his or her union activities, no matter how many other valid
reasons exist for the employer's action. Muskego-Norway C.S.J.S.D.
No. 9 v. WERB, 35 Wis.2d 540, 562 (1967). Although the legitimate
bases for an employer's actions may properly be considered in
fashioning an appropriate remedy, discrimination against an employe
due to concerted activity

Here, the record is absolutely devoid of any evidence at all
concerning the critical components three and four above. There was
no testimonial or documentary evidence that the respondents were
hostile to the complainant's concerted activities. There is no
evidence that the respondents were motivated, in whole or in part,
by such hostility. Indeed, after including this allegation in its
complaint, the union seems to have abandoned this theory, and
presented no argument on this point in its brief. Given the total
lack of any evidence at all supporting two necessary components ­
components the complainant must establish by a preponderance of the
evidence ­ I have found no violations of Sec. 111.70(3)(a)3, and
have accordingly dismissed those aspects of the complaint.

The complaint as to Sec. 111.70(3)(a)5, Wis.
Stats.

Pursuant to sec. 111.70(3)(a)5, Wis. Stats., it is a
prohibited practice for a municipal employer to "violate any
collective bargaining agreement previously agreed upon by the
parties with respect to wages, hours and conditions of employment"
affecting municipal employees. While grievance arbitration is the
generally accepted way to evaluate claims that an employer has
violated terms of a collective bargaining agreement, the Union has
here invoked the Commission's jurisdiction and the employer has
neither objected not demanded referral to arbitration. City of
Milwaukee (Police Supervisors), (Levitan, 11/2000); Green Bay
Police, (Neilsen, 7/1999). Accordingly, I will evaluate the
complaint on its merits.

Evaluating a (3)(a)5 complaint requires that I review the
employer's actions as a grievance arbitrator would, to determine whether
the employer violated the terms and conditions of the collective
bargaining agreement.

By adopting section 3-4.1 of the Union Contract Implementation
(UCI), the Town has ordained that employees "may not bid for a shift if
their total hours for the workweek will exceed 40 hours during the
shift." The union contends this violates section 16.11 of the
collective bargaining agreement, which states that bargaining unit
personnel "may bid as few or as many shifts as desired," provided the
shift requests are for full shifts.

The Town's primary defense is that it has the right, pursuant to
the management rights clause of Article 4, to control the overtime work
of employees. It also argues that the Schedule Manager has the
discretion to fill (or reject) bid requests, subject only to the
commitment to honor seniority "where that clause is applicable." The
town's attorney made clear at hearing why the town adopted 3-4.1 and the
related clauses ­ "to establish a policy which essentially controls
overtime that the fire fighters can work."

Page 16

Dec. No. 30033-A

The employer is correct that it has the residual right, pursuant to
sec. 4.01(5) to "direct the employees, assign work and overtime."
However, as the employer acknowledges, that right is limited "to the
extent such functions and rights are restricted by the terms of this
Agreement."

One of the terms of the agreement is Section 16.11. That clause
empowers employees to bid "as few or as many shifts as desired." I find
no way that the phrase "as many shifts as desired" can coexist with the
employer's unilateral imposition of the 40-hour cap. When a residual
management right directly conflicts with an explicit term in the
agreement, the explicit term prevails.

I also reject the employer's contention that the schedule manager
has the authority to decline to assign a shift where such an assignment
would generate overtime. Pursuant to Sec. 16.05, the schedule manager
"will assign shifts from the bids submitted."(emphasis added).

The employer has described the bidding process as the means by
which an employee "may submit a request for shifts," and maintains that
"there is no contractual language which obligates the Town to accept
those bids."

The employer exposes the flaw in its own analysis, however, by
acknowledging that the Town does have a contractual requirement to
follow seniority "when two or more employees have requested, or
submitted bids, for the same shift."

The provisions for assigning shifts are neither complex nor
difficult to discern, and give a far different understanding of what it
means to "bid" on a shift than that which the employer asserts.

Everything about Section 16.04, Selection of Personnel, speaks to
the bidding process as being far more than just a process by which an
employee, as the employer puts it, "may submit a request for shifts."
The paragraph begins by stating unambiguously that "selection of
personnel for 'in-house staffing' shall be by bid on a monthly basis"
(emphasis added). It states that "the monthly bid shall proceed in
order of seniority," and provides that any vacant position "not selected
by bid at the close of the bidding process" shall be filled/offered in
seniority order. (emphasis added). It even defines "bid" as meaning
"select," in the provision that personnel "can only select (bid)"
positions they are otherwise qualified to hold.

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Section 16.05 describes the duties and powers of the schedule
manager, who "will assign shifts from the bids submitted." (emphasis
added). It is hard to see how this thought ­ bids are the basis of
shift assignments ­ could be expressed with any greater clarity. There
is nothing in the text of this section which authorizes the shift
manager to reject a bid for any reason other than it is for a shift on
which a more senior employee has bid.

The clear and unambiguous meaning of Section 16.04, then, is that
to "bid" on a shift is to lay claim on that shift, subject only to the
conditions that bids must be for full shifts, that split shifts are not
allowed, and that, in the case of multiple requests for a particular
shift, the employee with greater seniority prevails.

To summarize ­ staffing "shall be by bid," a monthly process which
proceeds by seniority. The schedule manager assigns shifts "from the
bids submitted." To "bid" has the same meaning as to "select."

The employer may well feel it is unworkable, even absurd, to have
a system where an employee has the right to what is essentially self-generated overtime.
Certainly, from the perspective of efficient and
economical scheduling, one can sympathize with the town's position. But
that is not the issue before me. The issue before me is not which
system would be more efficient and economical. The issue before me is
whether the terms of the Union Contract Implementation document, section
3-4.1, violates the terms of the collective bargaining agreement by its
unilateral imposition of a rule that prevents employees from bidding on
a shift if their total hours for the workweek would exceed 40 hours
during that shift. It does.

The union further complains that the town committed a prohibited
practice by promulgating sections 3-3.2.2 and 3-3.2.2.1 of the UCI,
which purport to include in the 40 hours of weekly work for which an
employee may bid those hours which are for scheduled training and pager
pay. The union argues that if the 40-hour limit itself is a violation
of the collective bargaining agreement, then any other element of the
UCI further defining and interpreting that 40-hour limit also violates
the agreement.

The union is correct in this analysis. Since the 40-hour limit
itself violates the collective bargaining agreement, those provisions of
the UCI which further define and interpret that limit also do so
contrary to the terms of the agreement. As such, their implementation
constitutes another prohibited practice.

The union further alleges that the town has committed a prohibited
practice by failing to pay time and one-half for time employees spend at
training, when they are on the on-call crew (pager pay), and when they
are called to respond outside their regular schedule. The union

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Dec. No. 30033-A

contends these policies violate the terms of Section 16.14 of the
collective bargaining agreement, which provides:

All work in excess of schedule bid shift hours and all work in
excess of forty (40) hours per week shall be paid at the rate of time
and one-half (1-1/2) of the employee's applicable hourly rate of pay.

The parties agree that hours spent on-duty which are an extension
of a shift gets time and one-half for those additional hours. That is,
when an employee whose shift ends at 6:00 a.m. works till 9:00 a.m.
because of a fire call, those additional three hours are at time and
one-half. Where the parties disagree is the treatment of pager pay,
training hours outside of bid shift hours and call-backs. The union
says these hours are also at the overtime rate; the employer asserts
that they are at straight time (except that all hours worked at more
than 40 hours per week are at the overtime rate of time and one-half).

The collective bargaining agreement contains explicit provisions on
two of these aspects. Section 16.11 provides that employees "shall hold
themselves available" for work as per past practice "provided however
that each employee shall receive two (2) hours pay (pager pay) at the
employees (sic) applicable hourly rate of pay per day servedin addition
to all hours worked and, when applicable, pay received" under Section
16.15 of the agreement. (emphasis added). Section 16.15 provides that
"any employee who responds to calls outside of their regular schedule
will be paid a minimum of two (2) hours pay." There are no terms in the
agreement specifically addressing the issue of training.

At hearing and in its brief, the town put great emphasis on the
fact that the union on occasion referred to hours as being "outside" the
scheduled bid shift hours, when in fact the collective bargaining
agreement (sec. 16.14) provides for overtime for all work "in excess" of
scheduled bid shift hours. Frankly, this seems a difference without a
distinction, and for the purposes of this analysis, I find that
"outside" the scheduled bid shift hours is the functional equivalent of
"in excess" of the scheduled bid shift hours.

The town frequently provides training on Monday evenings, requiring
personnel who would not otherwise be on duty to be present and
participate. For those employees who are not otherwise on duty at that
time, such training activities constitute "work in excess of scheduled
bid shift hours." Pursuant to Section 16.14, these hours are to be
compensated at time and one-half.

At times of exigent or emergency situations, personnel working "in-house" may be
supplemented by two other sets of employees ­ those who
are assigned to a duty crew (on crew call) may be mandated to report to
assist, while those who are not on-call may be asked to report if they
are available. For either group, section 16.15 provides a minimum of
two hours

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Dec. No. 30033-A

pay, regardless of how much time is actually worked. Because any time
actually worked while in call-back status constitutes "work in excess of
scheduled bid shift hours," the terms of Section 16.14 require that all
time actually worked while in call-back status be compensated at time
and one-half.

As noted, the text of Section 16.14 shows that the parties were
able to specify the pay rate under certain circumstances as time and
one-half. That makes it very telling that the text of Section 16.11
pegs pager pay at the employee's "applicable hourly rate of pay,"
meaning straight time. The fact that the collective bargaining agreement
includes the specific detail of the rate of pay for such work, but
pointedly does not set it at time and one-half, leads me to conclude
that the parties intended this activity to be compensated at straight
time. Given that the drafters have been shown to be familiar with the
concept and phrase "time and one-half" for certain situations, their
explicit use of the phrase "applicable hourly rate of pay" must mean
that they did not mean for the activity of being on the duty crew, in
and of itself, as triggering the overtime provisions.

As to remedy, I have ordered the town to make whole, with interest,
the employees who did not receive the rate of time and one-half for
training activities when they were not otherwise scheduled to work
and/or for hours actually worked while in call-back status. This
calculation is to be retroactive to the first day of the collective
bargaining agreement, January 1, 1998.

I have not ordered an economic remedy for the town's past violation
of the terms of the collective bargaining agreement relating to the
number of shifts for which an employee may bid. Given the general nature
of scheduling for protective services, and the specifics of this
controversy, I do not believe it is possible to determine an accurate
assessment of the economic impact of the town's past violation. This
evaluation, however, does not excuse the town from future economic
liability in the event of recurring violations of the collective
bargaining agreement.

The complaint as to Sec. 111.70(3)(a)7, Wis.
Stats.

The union has also alleged that the town's various acts were
undertaken in violation of Sec. 111.70(3)(a)7, Wis. Stats., which makes
it is a prohibited practice for a municipal employer to "refuse or
otherwise fail to implement an arbitration decision lawfully made under
sub. (4)(cm)."

The town, however, has not refused or failed to implement the Stern
award. The fact that the UCI constituted an improper means of
implementing the Stern award is far different from finding that the town
refused to implement the award. The town has implemented the

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Dec. No. 30033-A

Stern award, albeit in an improper manner. That is why I have found
that the town violated Section (3)(a)5, and dismissed the complaint as
to (3)(a)7.

Dated at Madison, Wisconsin this 1st day of June, 2001.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

Stuart Levitan, Examiner

SDL/gjc

30033-A.doc

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Dec. No. 30033-A

NOTICE TO ALL EMPLOYEES

Pursuant to an Order of the Wisconsin Employment Relations
Commission, and in order to effectuate the policies of the
Municipal Employment Relations Act, we hereby notify our employees
that:

1. WE WILL NOT violate the terms of the
collective bargaining
agreement currently in force between the Town and Teamsters
Local Union 695.

2. WE WILL NOT enforce
those terms in the Union Contact
Implementation document which set a 40-hour per workweek
maximum as the limit for which employees of the Fire
Department may bid and receive shifts.

3. WE WILL pay employees
time and one-half for hours actually
worked while on call-back status and for training activities
undertaken when an employee would not otherwise be on duty.
Payments for time already worked are retroactive to January
1, 1998, plus interest at twelve percent (12%) annually.